ROWE & HELBIG

[2017] FamCA 219

FAMILY COURT OF AUSTRALIA

ROWE & HELBIG [2017] FamCA 219

FAMILY LAW – COSTS – Where the applicant seeks costs in relation to the substantive parenting proceedings between the parties – Where the respondent’s application was motivated by her perception of the best interests of the children – Where the respondent could not be said to have been wholly unsuccessful – Application dismissed.

FAMILY LAW – COSTS – DISQUALIFICATION – Where the respondent sought that the judge recuse herself on the basis of apprehended bias – Where the basis of the complaint was that the judge had made findings in the substantive proceedings – No apprehension of bias in the judge hearing the costs application – Application dismissed.

FAMILY LAW – COSTS – JURISDICTION – Where the respondent questioned the jurisdiction of the court to make a costs order – Where the respondent argued that the issue required a jury trial – No trial by jury in the Family Court – Where the respondent argued that the applicant was re-litigating the issue of costs – Where the costs of the substantive proceedings had not yet been determined and the applicant’s costs application was still on foot – The court had jurisdiction to hear the application. 

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.08

Hawkins & Roe (2012) 47 Fam LR 526
Helbig & Rowe [2015] FamCA 146

APPLICANT: Mr Rowe

RESPONDENT: Ms Helbig

FILE NUMBER: PAC 5421 of 2010

DATE DELIVERED: 11 April 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 6 April 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr O’Sullivan of O’Sullivan Legal

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. That the respondent’s oral application for recusal be dismissed.

2. That the Application for Costs filed 19 March 2015 be dismissed.

3. That the response filed 30 September 2016 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rowe & Helbig has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5421 of 2010

Mr Rowe

Applicant

And

Ms Helbig

Respondent

REASONS FOR JUDGMENT

1. Judgment in parenting proceedings between Mr Rowe (“the Applicant”) and Ms Helbig (“the Respondent”) was handed down on 9 March 2015. On 19 March 2015, the Applicant filed an Application for Costs. That application was deferred pending the determination of an appeal to the Full Court by the Respondent.

2. The appeal was dismissed.

3. The Applicant now prosecutes his Application for Costs. The Respondent opposes that application.

4. The Applicant relies upon a Financial Statement sworn 26 September 2016, and an affidavit sworn by him on 19 March 2015.

5. In his application, he seeks an order that the Respondent pay his costs of the proceedings as agreed, or failing agreement, assessed.

6. The Respondent relies upon a Financial Statement sworn by her on 30 September 2016, and an affidavit sworn by her on the same day. In her Response filed 30 September 2016, in relation to costs, the Respondent seeks the following orders:

   1.That the father’s application to re-litigate costs determined 9 March 2015 be dismissed.

   2.That the father pay the mother’s costs of and incidental to his application to re-litigate.

   3.That the father is restrained from making future cost claims against the mother re these proceedings.

   4.That the evidence for the matter PAC5421 of 2010 be retained by the court for a period of not less than 10 years.

   5.That the matter is heard in open court and, if the father does not withdraw allegations against the mother of dishonesty and influencing witnesses, that the matter be tried before a jury.

   6.That the father pay the mother’s costs of and incidental to his withdrawn contravention claim of 2014.

   7.That the mother is granted leave to issue subpoenas in relation to the father’s costs claim March 2015.

   8.That the mother is granted leave to cross examine the father, [the father’s solicitor], [Dr B] and witnesses relevant to the father’s costs claim March 2015.

   9.That the children live with the mother and she have sole parental responsibility.

   10.That the father is restrained pursuant to s.68B (1) of the Family Law Act 1975 from attending the mother’s residence or from being within 200 metres of the mother’s residence.

   11.That that (sic) the start date for Order 16 of the orders of 10 June 2016 be declared as the 17th June 2016 and a calendar of visits be issued by the court.

   12.That the father is ordered to comply with the 10 June 2016 orders as written.

   13.That the father is restrained pursuant to s 68B(1) of the Family Law Act 1975 (Cth) from attending the children’s school or from being within 200 metres of the school on the days that the mother is due to collect the children from the school pursuant to Order 16 of the orders dated 16 June 2016.

   14.That the father make the children available to spend time with the mother for occasions forfeited due to his noncompliance to current orders.

   15.Leave is granted to the mother to relist the matter on 7 days’ notice to each other party by arrangement with the Associate in the event the father does not comply with orders as written.

7. The Response raised preliminary matters which need to be determined before the substantive application can be considered.

PRELIMINARY MATTERS

1. In the course of submissions, the Respondent asked that I recuse myself on the ground of apprehended bias. That application will be determined first.

THE APPLICATION FOR RECUSAL

1. The gravamen of the Respondent’s submissions appeared to be that a judge who had, in reasons for judgment, made findings adverse to the interests of a party, could reasonably be apprehended to be biased against that party.

2. The Respondent enunciated numerous instances of findings made in the course of the reasons and of an asserted failure to take into account in her favour, evidence that was presented in the course of the trial.

3. The Respondent’s assertions of error in the course of the trial and in the reasons for judgment were fully aired before the Full Court of the Family Court of Australia but her appeal was dismissed.

4. I do not accept, as the Respondent submits, that a reasonable bystander, fully and properly informed, would form the view that a judge cannot bring an objective mind to a costs application because that judge has made findings in the course of a trial. If that were the case, no judge could hear a costs application arising out of a trial where that judge presided.

5. The application for recusal will be dismissed.

HAS THE APPLICATION FOR COSTS ALREADY BEEN DETERMINED?

1. By Clause 1 of her Response, the Respondent asserts that the issue of costs has been heard and determined.

2. In support of that application, the Respondent deposed that the Applicant, in his Initiating Application and his Minute of Orders tendered at the commencement of the trial, sought, inter alia, an order for costs.

3. The Respondent submits that the issue of costs was therefore determined by the judgment and Orders made on 9 March 2015.

4. The transcript shows that, at the conclusion of his submissions, the solicitor for the Applicant (who was the Respondent in the trial) submitted that the application for costs should be considered after judgement had been delivered.

5. The application in relation to costs contained in the Minute of Orders and the Initiating Application was not dealt with in the judgment and Orders made on 9 March 2015. Therefore the application remained to be determined.

6. Only the costs of the Independent Children’s Lawyer (“ICL”) were dealt with.

7. Rule 19.08 of the Family Law Rules 2004 (Cth) (“the Rules”)provides that an application for costs may be made by filing an application at any stage during the case or within 28 days after final orders have been made. Thus the Respondent submits that the Applicant, having made his application for costs during the hearing, cannot make a further application by filing an application within 28 days.

8. The Applicant could have relied on the application for costs made in the course of the hearing. Because that application was not dealt with in the judgment and orders, it remains on foot. The Applicant was not required to file a fresh application.

9. The Respondent has not been disadvantaged by the Applicant filing a fresh application rather than re-listing an existing application.

10. In so far as the Respondent seeks costs of the “application to re-litigate”, that application will be refused as the Respondent has failed to demonstrate that costs have already been dealt with.

LEAVE TO ISSUE SUBPOENAS

1. The Respondent disputes the accuracy of the Applicant’s financial disclosure and seeks to issue subpoenas directed to financial enquiry.

2. Having regard to the orders I propose to make, the Applicant’s financial position is irrelevant.

3. I do not propose to grant leave to issue further subpoenas.

JURY TRIAL

1. The Family Court of Australia does not conduct trials by jury.

CROSS-EXAMINATION

1. The Respondent submitted that in order for the issue of costs to be determined, it was necessary for her to cross-examine the husband, his solicitor and Dr B who was the single expert in the substantive proceedings.

2. If I understand her submissions correctly, the purpose of cross-examination was to demonstrate that findings made in the course of the trial were incorrect.

3. The proper avenue open to the Respondent, if she wished to demonstrate that findings made in the course of the trial were in error, was to appeal. She did so and her appeal was dismissed.

4. It is neither appropriate nor necessary for further cross-examination to occur in order to determine the costs application.

APPLICATION FOR ADJOURNMENT

1. During the course of submissions the Respondent indicated that she wanted the matter adjourned to consider the written submissions prepared on behalf of the Applicant. She submitted that an adjournment should be granted as a matter of procedural fairness as she had only received the written submissions that morning. There was no obligation on the Applicant to make written submissions. The Respondent was in the same position as she would have been had the Applicant’s submissions been made orally. However, the matter was adjourned until 2.15pm to allow the Respondent time to consider the written submissions.

2. The Respondent also sought an adjournment to bring further evidence in relation to the matters in s117(2A) of the Family Law Act 1975 (Cth) (“the Act”). That application was refused. The Respondent was directed to file an affidavit setting out the evidence upon which she relied and she did so. No further evidence was required to determine the application and the Respondent, without objection, updated her financial circumstances from the bar table.

THE APPLICATION FOR COSTS

1. The application is governed by the provisions of s 117(2A) of the Act, which are set out below:

   (2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a) the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

1. The Applicant filed a Financial Statement. I acknowledge that the Respondent does not accept its veracity. He disclosed an income of $575 per week and outgoings of $816. He owns a home he estimates to be worth $210,000 and which is encumbered. He owes $215,000 in unpaid legal fees.

2. The Respondent also filed a Financial Statement. She disclosed an income from rent of $231 per week. I accept that she no longer receives rent but has moved into the property. She owns an unencumbered property which she estimates to be worth about $286,000. She bases that estimate on the value of her equity after taking into account an asserted loan from her parents. The Applicant disputes her estimate and contends that her equity in the property has a greater value. There is no evidence to support either contention. She has outstanding legal fees of $100,000.

3. Both parties have superannuation. The Applicant has $297,397 and the Respondent has $532,271. Neither is of an age to have access to those funds.

4. I set out the respective contentions of the parties as to their financial positions only to demonstrate that neither is wealthy and their positions are comparable.

5. Neither party was in receipt of legal aid.

6. The Applicant asserts that the Respondent exacerbated his costs by filing unnecessarily voluminous material and calling a number of “unnecessary” witnesses. The trial was heard over many days. There was a large volume of material. It may be that some of the material filed in the Respondent’s case was unnecessary but there is no evidence that the trial was thereby protracted.

7. The Applicant asserts that the proceedings were caused by the failure of the Respondent to comply with the order made in earlier proceedings. He argues that, had the Respondent accepted and continued to abide by the earlier orders made in May 2013, then the proceedings would have been unnecessary.

8. The Applicant misunderstands the application of s 117(2A)(d) of the Act. It is not alleged that the Respondent failed to comply with orders in the course of the proceedings before me which were commenced by the Initiating Application filed 31 January 2014.

9. As is usual in parenting proceedings, neither party was wholly successful or wholly unsuccessful.

10. The Applicant’s position in submissions is set out at [408] to [410] of the judgment (Helbig & Rowe [2015] FamCA 146):

    408. The father sought orders in similar terms to those sought by the ICL, being that the progression from supervised to unsupervised time for the children with the mother was dependent upon her changing her views about the allegations of abuse.

    409. The mother was quite adamant in her evidence that she did not intend to seek any assistance from a counsellor to modify her views. There is no evidence that forcing the mother to engage in a course of counselling that she strongly resists is likely to have a positive effect for her or for the children.

    410. In all likelihood, a regime such as that proposed by the father and the ICL would lead to the children’s time with their mother being supervised indefinitely.

11. The orders which were ultimately made did not reflect the father’s position.

12. It cannot be said that the Respondent was wholly unsuccessful. Orders were made which will lead to the children spending alternate weekends and periods of school holidays with her.

13. There is no evidence of any relevant offer of settlement.

14. In Hawkins & Roe (2012) 47 Fam LR 526, considering the issue of costs in parenting cases, the Full Court said:

    13. In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

    14. In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

    (Emphasis added)

15. And later:

    147. While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

16. While the Court did not accept the mother’s case that the children were at risk of sexual harm from the father, it could not be argued that the mother deliberately made false allegations or did not believe that the children were at risk.

17. At [353] of the judgment I stated:

    The mother herself, both in her affidavit evidence and in her oral evidence, confirmed that she is fixed in her belief that the father is a danger to the children…

18. At [384] I stated:

    The mother saw no need to have any assistance from a therapist in relation to the issues before the Court. She was not prepared to consider the recommendation of DFCS that she at least put her mind to alternative explanations for the manner in which the children were behaving. She did not resile from the statements which are referred to in paragraph 209 of these reasons. [The statements referred to at paragraph 209 are statements of the mother’s concerns about the father].

19. I accept that the mother was motivated by her perception of the best interests of the children.

20. Taking into account all of the matters required to be considered, and the statements of the Full Court of the Family Court of Australia, this is not an appropriate matter in which to make an order for costs.

21. The application will be dismissed.

THE BALANCE OF THE RESPONSE

1. Clause 3 seeks to restrain the Applicant from making any further costs application. There is no evidence to support this application and it will be dismissed.

2. Clause 4 relates to the retention of the file of proceedings in Parramatta instituted in 2010 for a period of ten years. There is no evidence to support this application and it will be dismissed.

3. Clause 6 refers to costs of a Contravention Application which was withdrawn in 2014. The application is almost three years out of time. No leave is sought to proceed out of time and there is no evidence which demonstrates that such leave should be granted.

4. Clause 9 is not a competent application. The Respondent seeks to use the costs application as a vehicle to re-agitate the substantive parenting proceedings. That application will be dismissed.

5. There is no evidence to support the application for injunction contained in Clause 10, other than the assertion that on one occasion on an unspecified date, the Applicant left medication for a child on the Respondent’s door step. That evidence is insufficient to warrant the making of the order sought.

6. Clause 11 requires that the orders be revised. I have no power to do so.

7. Clause 12 is not a competent application.

1. There is no evidence to support the application contained in Clause 13.

2. Clause 14 is not a competent application.

3. The leave sought in Clause 15 is inappropriate and will not be granted.

4. Accordingly, the balance of the Response filed 30 September 2016 will be dismissed.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 April 2017.

Associate: 

Date:  11/04/2017